12/24/2003

where to try Saddam?

My reflexive instinct is that Saddam should be tried by Iraqis, though there is certainly opposition to the idea, suggesting instead that he be tried by a tribunal such as The Hague. Disclaimer, I'm not a fan of the International Criminal Court because the way they have articulated their jurisdiction, it seems to tempting for European powers to try and use it to indict American military personnel on trumped-up war crimes issues as a means of opposing US foreign policy. That may not happen, but I'd need to see safeguards against that kind of Great Game abuse.

I do support the idea of international courts for crimes against humanity. I think that the legitimacy of such things is universally acknowledged, when the crimes are of sufficient scale - Hitler's henchmen indicted at Nuremberg comes to mind. Saddam's crimes against humanity were a full order of magnitude less, in terms of human suffering (evil-ness cannot be similarly quantified).

I should note that the "Saddam = Hitler" signs were out in force across the warblogsphere wile the WMD goalposts rapidly and frantically were moved by the Bush Administration from "he can launch in 15 minutes!" down to "he lusted for them in his heart" - and partisan weapons inspector David Kay's utter failure to dredge up even the appearance of a stockpile has essentially proved the lie to the WMD pretext for invasion. So, observing the large overlap between those same warbloggers and the crowd now calling strenously for an Iraqi-only tribunal, I have to wonder if they have changed their mind about the severity of Saddam's crimes.

I see a straw man argument being constructed that the primary opposition to an Iraqi tribunal is for reasons of legitimacy. However, the real reasons to question the wisdom of this choice are grounded in real concerns - articulated by Professor Juan Cole in an interview with the Ann Arbor News (the interview is reprinted on Prof. Cole's blog). In it, he makes the following points on how an Iraqi trial could hamper the occupation itself:

an Iraqi trial may provoke ethnic violence, as it would publicize Saddam's genocidal campaigns against the Marsh Arabs, Kurds, and Shi'a. The ex-ruling Sunni minority is understandably concerned about their perceived complicity in these acts.

If Saddam chooses to highlight the US support during the 80's despite his use of WMD against his own people, and the abandonment of the Shi'a in the 90's after the first Gulf War, he could succeed in further poisoning public attitudes towards the occupation by those victimized groups.

Saddam could leverage the public stage of the trial to renew his role as symbolic leader to the guerilla resistance. He would certainly be a focal point for the resistance, which has not slowed down despite his capture or the deaths of his sons.

There isn't any sigle priority on my mind higher than succeeding in reconstruction. If there was a required choice between success in Iraq and bringing Saddam to justice, I'd rather he went free.

Cole also points out that it's essentially impossible to have a fair trial for Saddam. It's worth excerpting his thoughts in full:

Q: Is it possible for him to get a fair trial?

A: That's another issue. One of the persons who is calling for a war crimes tribunal in Iraq is Shiite leader Abdul Aziz al-Hakim, current president of the interim Governing Council. Sixty-three members of his family were killed by Saddam Hussein. I'm willing to concede that the man is an upright man, but I don't know if saints exist to that extent in the world where he has no sense of vindictiveness about this. That's a problem that a lot of the people involved in this have talked about, and for those reasons I really think it is important that any trial occurs in The Hague.

Q: Are there other reasons why any trial should be conducted by the existing format of international war crimes tribunals?

A: There has never been such a tribunal in Iraq before. It's being created from scratch, most of the judges with long experience in Iraq are Baathists and there's no constitution in Iraq. Under what statutes can he be tried?

Q: Does it matter if he gets a fair trial?

A: I think it does matter. First, Saddam still has supporters, and to satisfy those supporters, it's important that any trial is conducted through a fair process. Otherwise, it could be construed that he was treated unfairly.

I also think it's important for Iraq. If there is going to be a new Iraq, it must be founded on the principles of law and fairness. It would not [. . .] bode well that the country's first act would be to railroad someone even as despised as Saddam Hussein.

That's really a subtle point that I think the blood lust on the part of the pro-war partisans tends to obscure (especially since many are on the defensive about the WMD issue). The entire purpose of the occupation (note: NOT the war!) is to rebuild Iraq as a representative givernment, rule of law nation. The case for Saddam should be stong enough that it can be made rigorous. If it is sloppy and governed by emotion, then there will indeed be doubt in the minds of some of Saddam's supporters - and that kernel of doubt will hamper our efforts to reshape the society as a whole.

EVERY man, woman, and child in Iraq MUST be convinced, without any shred of doubt, that Saddam was an evil monster and that everything he represented - including Ba'ath nationalism - is to be utterly and comprehensively rejected. Only a fair trial can achieve this essential objective of the occupation.

I'm not saying (and nor is Cole) that the unfairness of an Iraqi trial is an axiom. But there's a good reason we have change of venue motions in our own justice system.